Tuesday, July 22, 2008

There has been a lot of right wing braying about the Supreme Court's decision in Boumediene v. U.S. which held that detainees at Guantanamo Bay's Camp Delta do have the right to petition for a writ of habeas corpus in U.S. courts. Justice Kennedy's majority opinion contains a lengthy recounting of the history of the Great Writ, one of the foundational principles of Anglo-American law, and its first principle against arbitrary incarceration.

In his dissent, Justice Scalia (or Justice Scallion as Spot's spell checker would have it) said that we will come to rue the day that Boumediene was decided. When Spot looks back on his life, he may regret opportunities missed, loves lost, and snappy come backs not made, but he doubts very seriously that he will regret the decision in Boumediene.

Here's just a sentence picked out of Scalia's dissent by the Power Line Boys:

Today, for the first time in our Nation's history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.

There's a lot of question begging and mischaracterization in that single sentence. But Tony's good; you have to give him that. No wonder Power Line picked it up!

Also for the first time, we have thrown detainees in a hole, without any judicial process, and without a prospect of ever letting them out. So maybe it was time for a new direction. But let's parse Tony's sentence.

As the majority opinions says, the Fifth and Sixth Amendments have been found by the Supreme Court to apply to extraterritorial proceedings by U.S. authorities. So while Scalia is narrowly correct with respect to the writ of habeas corpus specifically, the Court didn't do anything entirely novel. Moreover, Justice Kennedy observes that the Supreme Court in Rasul v. Bush, the first time that the Court addressed the detainee issues, that it held that statutory habeas corpus did apply.

Congress sought to strip the courts of statutory habeascorpus in the Detainee Treatment Act and the Military Commissions Act, but the Boumediene court found that the detainees had a constitutional, or judicial, right to habeas corpus that could not be stripped by the political branches of the government.

Scalia calls them all "alien enemies." That's where the question gets begged. How do we know they are all enemies? Under the DTA and the MCA, detainees are only entitled to a hearing before a Combatant Status Review Tribunal. A hearing in which hearsay evidence is admitted and the detainee has therefore little opportunity to actually confront his accusers, some of the evidence is not even revealed to the detainee so that he has a chance to rebut it, the detainee has no counsel, nor the practical ability to produce witnesses who may have exculpatory evidence.

To add insult to injury, under the CSRT scheme, an appeal is only permitted to the D.C. Court of Appeals, and it really isn't an appeal at all: merely a "review" of the procedural aspects of the CSRT hearing.

But Spot, these guys were all detained on the battlefield in Afghanistan or Iraq, right?

Sadly, no, grasshopper. A lot of them weren't even originally detained by U.S. forces, and they come from as far away as Bosnia and Gambia.

But we'll let most of them go when the war is over, right Spotty?

When will the global war on terror be over? Are we really in a state of war? In any event, according to the majority opinion, none of the petitioners in Boumediene are citizens of a country that we're at war with. The prospect is for the detainees to sit for a long time, maybe the rest of their lives. A few of them have already died.

Bob Herbert of the New York Times had a column today about this shameful episode in American history:

Donald Rumsfeld described the detainees at Guantánamo as "the worst of the worst." A more sober assessment has since been reached by many respected observers. Ms. Mayer [author of the recent book The Dark Side] mentioned a study conducted by attorneys and law students at the Seton Hall University Law School.

"After reviewing 517 of the Guantánamo detainees' cases in depth," she said, "they concluded that only 8 percent were alleged to have associated with Al Qaeda. Fifty-five percent were not alleged to have engaged in any hostile act against the United States at all, and the remainder were charged with dubious wrongdoing, including having tried to flee U.S. bombs. The overwhelming majority — all but 5 percent — had been captured by non-U.S. players, many of whom were bounty hunters."

The really scary thing for the White House, the Justice Department, and the Pentagon is now the detainee cases will start to be heard before U.S. Constitution Article III courts of record. Detainees will be able to start summoning witnesses on their behalf, to have a meaningful opportunity to confront the evidence against them, and to be represented by lawyers, not merely assisted by docents.

Some of the detainees deserve to be where they are, but clearly some of them don't. And it's going to be huge stain on the political branches of government - indeed on us all - as we begin to find out.